Adam is right that the right to vote has long been recognized as a right,
though nowhere mentioned in the text. But the text does mention lots of
other things. It mentions the war power, for instance, and the World War I
era cases specifically relied on it when "balancing" free speech against the
constitutional value of effective warmaking.
In Schaefer v United States, a 1918 case involving a newspaper that
allegedly printed false war reports, the Court marveled at the "curious
spectacle . . . presented" by a First Amendment challenge to the Espionage
Act. Under the newspaper's argument, the Court said, the Constitution,
"that great ordinance of government and orderly liberty[,] was invoked to
justify the activities of anarchy or of the enemies of the United States,
and by a strange perversion of its precepts it was adduced against itself."
The Constitution "empowered Congress to declare war and war is waged with
armies." Surely it was senseless to argue that under the same Constitution
"their [the armies'] formation [recruiting or enlisting] could be prevented
or impeded, and the morale of the armies when formed could be weakened or
debased by question or calumny of the motives of authority." The Court
repeated this argument in 1920 in Gilbert v Minnesota, and in 1931 in United
States v Macintosh.
Likewise, democratic self-government is a textually secured value, and
Gitlow v New York relied on it: Statements which "necessarily imply the use
of force and violence" are "in their essential nature . . . inherently
unlawful in a constitutional government of law and order." "[T]he
punishment of those who publish articles which tend to destroy organized
society [is] essential to the security of freedom and the stability of the
state." Same, as I mentioned, as to Frankfurter in Dennis v. United States.
Note the recurring theme: It is true that the Constitution protects freedom
of speech. But the Constitution also embodies other, equally important,
values -- that the government be a government of laws, that it be able to
wage wars effectively, that it be changed only through peaceful means. When
speech detracts from these ends, the free speech guarantee may have to yield
to the needs of the rest of the constitutional structure.
Similarly as to the constitutionally secured value of fair trials. Consider
Frankfurter's dissent in Bridges v California, where the Court held that
courts generally may not hold speakers in contempt for commenting on pending
litigation. Frankfurter disagreed: "Free speech is not so absolute or
irrational a conception as to imply paralysis of the means for effective
protection of all the freedoms secured by the Bill of Rights. In the cases
before us, the claims on behalf of freedom of speech and of the press
encounter claims on behalf of liberties no less precious." "A trial is not
a 'free trade in ideas,'" Frankfurter argued, "nor is the best test of truth
in a courtroom `the power of the thought to get itself accepted in the
competition of the market.'" "Freedom of expression can hardly carry
implications that nullify the [Constitutional] guarantees of impartial
trials," guarantees which Frankfurter saw as central to constitutional
democracy. (I realize that the Court has left open the door to some
restriction of speech in order to promote fair trials, but only the
narrowest crack; in practice, newspaper coverage remains quite free even
when it does pose significant risk of influencing future jurors.)
Likewise, Jackson's dissent in Terminiello v City of Chicago, which
Frankfurter endorsed, argued that the government must be allowed to restrict
speech that could lead to mob violence, even when the speaker isn't
intentionally trying to incite the violence. Without such a power, not only
order, but constitutional liberties -- including the freedom of speech --
would suffer: "In the long run, maintenance of free speech will be more
endangered if the population can have no protection from the abuses which
lead to violence . . . . We must not forget that it is the free democratic
communities that ask us to trust them to maintain peace with liberty and
that the factions engaged in this battle [Fascists and Communists] are not
interested permanently in either."
Shortly afterwards, in Kunz v New York, Jackson, dissenting alone, suggested
that religious freedom concerns should also be weighed against the free
speech interest. The government, Jackson argued, must have the power to
repress public attacks on Catholicism and Judaism, focusing on the
constitutionally secured value of religious freedom: "Is official action
the only source of interference with religious freedom? Does the Jew, for
example, have the benefit of these freedoms when, lawfully going about, he
and his children are pointed out as 'Christ-killers' to gatherings on public
property by a religious sectarian sponsored by a police bodyguard? We should
weigh the value of insulting speech against its potentiality for harm. Is
the Court, when declaring Kunz has the right he asserts, serving the great
end for which the First Amendment stands?"
Now perhaps, as Bobby Lipkin suggested, these arguments were right at least
in their general reasoning, even if not in its particular application. But
I think we need to recognize that, once this "constitutional tension
method," as I call it, becomes entrenched, these arguments (whether or not
one agrees with their details) become much more powerful. If democracy is
reason enough to restrict certain campaign spech, it's hard to see why it
isn't reason enough to restrict Communist speech -- or why the war power
isn't reason enough to restrict certain antiwar speech.
Eugene
-----Original Message-----
From: Winkler, Adam [mailto:winkler@law.ucla.edu]
Sent: Thursday, December 11, 2003 7:45 PM
To: ban@richardwinger.com; Guy-Uriel Charles
Cc: election-law@majordomo.lls.edu
Subject: RE: McConnell v. FEC: The big picture
Although it is true that no provision of the Constitution provides
explicitly that citizens have the right to vote, long-standing
constitutional doctrine holds that the fundamental rights strand of the 14th
Amendment does include the right to vote. See Harper v. Virginia Board of
Elections; Kramer v. Union Free School District; and Reynolds v. Sims. The
lack of explicit language in the text of the Constitution allows for more
confusion than one might desire -- see the incorrect statement of the law
found in Bush v. Gore mentioned below -- but it does not necessarily mean
that the right is under-protected. Privacy is nowhere mentioned in the
text, but substantive due process protections for women's right to choose,
unmarried people's right to use contraception, and all people's right to
engage in consensual sex remain strongly protected under constitutional
doctrine.
Adam Winkler
UCLA School of Law
-----Original Message-----
From: ban@richardwinger.com [mailto:richardwinger@yahoo.com]
Sent: Thursday, December 11, 2003 12:13 PM
To: Guy-Uriel Charles
Cc: election-law@majordomo.lls.edu
Subject: McConnell v. FEC: The big picture
But Justice Breyer took an oath to support the
Constitution. There is no general right to vote in
the US Constitution. That's why it was apparently
legal for the Florida legislature to be passing a
bill, saying the legislature was going to choose the
presidential electors in 2000. That's why states can
still ban ex-felons from voting. That's why D.C.
still has no voting representation in congress, and
why U.S. citizens living in the territories can't vote
for president. That's why the Georgia legislature can
enforce a Democratic-Republican ballot monopoly in
U.S. House races that has lasted unbroken for 60
years.
We desperately need an amendment to the US
Constitution to solve the problem that there is no
general right to vote in the US Constitution. In the
meantime, where does Breyer get the authority to
override the text of the US constitution (the First
Amendment), in favor of a democratic ideal that isn't
in the text?
--- Guy-Uriel Charles <gcharles@UMN.EDU> wrote:
I think the Court did take the First Amendment
issues seriously but they
also recognized that there are competing democratic
principles at
stake. As Rick notes, the majority opinion clearly
reflects Breyer's
influence and his approach to addressing campaign
finance issues.
Breyer's approach employs judicial review to
vindicate democratic
practices and to assure democratic practices serve
multiple democratic
ends. The approach is outlined not just in Shrink
but in Breyer's
lecture published at 77 NYU L Rev. 245 (2002).
The question for me is whether this balancing
approach is going to be
applied to other issues of law and democratic
politics or is it limited
to campaign finance. In my recent California Law
Review article, I
argue that Breyer's approach is applicable more
broadly. But the jury
still out on that question.
guy
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